U and I, Inc.

U AND I, INC. U and I, Inc. and American Federation of Grain Millers, and its affiliated Local No. 288, AFL-CIO and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca, and its affiliated Locals 983,524,976,222, 148, 839, and 556, Parties in Interest. Case 19-CA- 81-94 December 6, 1976 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER Upon a charge duly filed on November 26, 1975, by American Federation of Grain Millers, and its affiliated Local No. 288, AFL-CIO, hereinafter called the Grain Millers, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 19, issued a complaint and notice of hearing on January 15, 1976, against U and I, Inc., hereinafter called Respondent. The complaint alleged that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and (2) and 2(6) and (7) of the National Labor Relations Act, as amended, by recognizing and entering into a contract with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and its affiliated Locals 983, 524, 976, 222,' 148, 839, and 556, hereinafter called the Teamsters. On March 26, 1976, the parties executed a stipula- tion of facts by which the parties waived a hearing before an Administrative Law Judge and the issuance of an Administrative Law Judge's Decision, and agreed' to submit the case to the Board for findings of fact, conclusions of law, and an order, based on a record consisting of the stipulation and the exhibits attached thereto. On April 22, 1976, the Board approved the stipula- tion of the parties and ordered the case transferred to the Board, granting permission for the filing of briefs. Thereafter, the General Counsel, the Respondent, and the Teamsters as Parties in Interest filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon the basis of the stipulation, the -briefs, and the entire record in this case, the Board makes the following: , All dates mentioned are in 1975 unless specifically indicated to be otherwise. FINDINGS OF FACT 1. JURISDICTION I Respondent is and at all times material has been a Utah corporation, having its general offices in Salt Lake City, and is engaged in agriculturally based diversified operations encompassing five subsidiary corporations-a trucking division, four sugar beet processing plants, and a seed plant . During the past calendar year, a representative period, Respondent sold and shipped from its Toppenish, Washington, location, a facility with which we are concerned herein, finished products valued in excess of $50,000 to points outside the State of Washington. Respondent admits, and we find, that it is, and at all times material herein has been, an employer as defined in Section 2(2) of the Act engaged in commerce and in operations affecting commerce as defined in Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Respondent admits, and we find, that American Federation of Grain Millers , and its affiliated Local No. 288, AFL-CIO, and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Hel- pers of America, and its affiliated Locals 983, 524, 976, 222, 148, 839, and 556, are labor organizations within the meaning of Section 2(5) of the, Act. III. THE ALLEGED UNFAIR LABOR PRACTICE Prior to September 1975,1 most of Respondent's trucking services for its facilities were provided by independent haulers and common carriers. However, Respondent also employed 22 drivers, 11 of whom were represented by the Teamsters, 4-6 of whom were unrepresented, and 7 of whom were represented by the Grain Millers in a unit of production and maintenance employees at Respondent's West Jor- dan, Idaho Falls, Toppenish, Moses Lake; and Garland facilities. Respondent then decided to create its own trucking division. Subsequent to this decision, James Rand, director of industrial relations for Respondent, met on August 1 with Lloyd Ott of the-Grain Millers to discuss the possibility of entering into an addendum to the master agreement between Respondent and the Grain Millers which would cover the drivers to be employed by the proposed division. On August 7, Ott notified Respondent that the proposed addendum was unacceptable. He offered to include the drivers under the terms of the master agreement without any changes. No other proposals were exchanged, nor did 227 NLRB No. 21 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Grain Millers indicate that it wished to pursue the matter any further. There were no other meetings held between Respondent and the Grain Millers regarding representation of the employees of the proposed trucking division. On September 5, Respondent began hiring employ- ees for the division and, on September 22, it began its trucking division operations. On September 23, Respondent met with representatives of Teamsters Locals 983, 524, 976, 222, 148, 839, and 556, at which time the Teamsters notified Respondent that it had obtained authorization cards from 90 percent of the drivers in the new division. Discussions were then commenced concerning an agreement between Re- spondent and the Teamsters. Respondent and the Teamsters representatives met again on October 20 and reached agreement on a master contract, which was signed early in Novem- ber.2 At no time had the Grain Millers claimed that it represented any employees in the newly formed trucking division. Thereafter, however, on November 17, the Grain Millers filed a representation petition seeking an election among "all the over-the-road truck drivers including local and line hauls" em- ployed by Respondent. The parties have stipulated that the drivers em- ployed by Respondent's trucking division have at all times constituted a separate and appropriate unit and are not an accretion to any unit represented by the Grain Millers. Moreover, absent the August 1 and 7 contacts with the Grain Millers, it is conceded Respondent's subsequent recognition of the Team- sters could not be held unlawful. A. Contentions of the Parties Invoking Midwest Piping and Supply Co., Inc.,3 the General Counsel contends that Respondent violated Section 8(a)(2) and (1) of the Act by recognizing the Teamsters. He argues in this connection that there was prior recognition and bargaining with the Grain Millers over trucking division employees which was sufficient to raise a claim by the Grain Millers which is "fully supportable and not lacking in substance." On the other hand, Respondent and the Teamsters assert that no teal question concerning representation existed at the time recognition was extended to the Teamsters which would render that recognition unlawful under Midwest Piping. B. Analysis and Conclusions The Midwest Piping doctrine which the General Counsel would invoke in this case requires strict neutrality of an employer when faced with the conflicting claims of two or more rival unions which give rise to a real question concerning representation in a unit appropriate for collective bargaining. Implicit in this concept of neutrality is the existence of a real representation question. Thus, an employer does not violate the Act by extending recognition to one of the competing unions where the rival union's representation claim is clearly unsupportable or specious or otherwise not colorable.4 The sole issue raised by the stipulation in this case is whether, when Respondent extended recognition to the Teamsters, there was an outstanding claim by the Grain Millers which raised, a question concerning representation so that, under Midwest Piping, the Teamsters recognition would be unlawful. We agree with Respondent and the Teamsters that there was not such a claim. In the first place, on the basis of the stipulated facts, it can hardly be found that there was any outstanding claim by the Grain Millers for recognition of the trucking division employees when Respondent met with the Teamsters. Prior thereto, there had been only a single meeting between Respondent and the Grain Millers, which had been initiated by Respondent and not the Grain Millers. Following this meeting, with the exception of the notification by the Grain Millers to Respondent that the proposed addendum was unacceptable, there was no further exchange of proposals and no indication by the Grain Millers that it wished to pursue the matter any further. In the circumstances, it would be difficult to find that there were conflicting claims at the critical time herein. In any event, even assuming that there were such rival claims, it is plain that any claim by the Grain Millers could not have given rise to a real, question concerning representation for, by its own admission, the Grain Millers never had any representation in the appropriate unit herein composed of Respondent's trucking division. Thus, no question concerning representation exist- ing when Respondent extended recognition to the Teamsters on the basis of the latter's claim of 90- percent representation in the trucking division, we find, consistent with the stipulation of the parties, that Respondent's recognition of, and contract with, 2 The contract excluded all employees covered by an agreement with 4 Playskool, Inc., a Division of Milton Bradley Company, 195 NLRB 560 another union. (1972). 3 63 NLRB 1060 (1945) UANDI,INC. 3 the Teamsters did not violate the Act, and we shall dismiss the complaint.5 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBER WALTHER, concurring: I concur with my colleagues in dismissing the complaint herein, but in so doing I find it necessary to reject the application of Midwest Piping and Supply Co., Inc.6 For the reasons which I will state below, I will find a violation of Section 8(a)(2) of the Act in cases of this nature only where the General Counsel has sustained his burden of proving that the union which has achieved representative status by means of an employer's voluntary recognition has done so either without securing majority status in fact, or union has secured that majority support with the active aid and assistance of the employer. In my view, the Act's purposes are fulfilled, not violated, where the employer recognizes and bargains with the union which enjoys majority status?. My colleagues may decide what is for them an appropriate occasion for the expression of their views of legal principles. I shall do likewise and consider this case appropriate for further expression of my views. In my opinion, this case is, most appropriate for a full and complete analysis of the law and its application or what it should be in so-called Midwest Piping situations. The scenario is virtually redundant. In August 1975, Respondent attempted to interest the Grain Millers in representing Respondent's drivers in a new division of its business. However, in two contacts, on August 1 and 7, 1975, the parties failed to agree on the Grain Millers representing these drivers. Subse- quently, about 6 weeks later, on September 23, 1975, the Teamsters claimed majority status among the drivers in the new division and demanded recognition by Respondent. Respondent recognized and began negotiations with the Teamsters. The parties thereaf- ter reached agreement on a contract in early Novem- ber- 1975. Some 2, weeks later, on November 17, 1975, the Grain Millers filed a representation petition, seeking an election in the recently established drivers' unit. 5 Because this case does not present a true Midwest Piping situation and inasmuch as Member Walther concurs in our dismissal of the complaint, we do not believe that it would serve any real purpose to debate the merits of the Midwest Piping doctrine with Member Walther herein. 6 63 NLRB 1060 (1945) r International Ladies' Garment Workers' Union, AFL-CIO [Bernhard- Altman Texas Corp.] v N L.R.B., 366 U.S. 731 (1961). The complaint is based on the contention that a violation exists under the auspices of the Board's Decision in Midwest Piping and Supply, Inc., supra. For reasons I note below, I will dismiss the complaint but, more fundamentally, I renounce the so-called Midwest Piping doctrine. Section 8(a)(2) of the Act provides in part that it is an unfair labor practice for an employer to "domi- nate or interfere with the formation or administration of any labor organization . . . ." As the Seventh Circuit noted in Playskool, Inc. v. N. L R. B., s a "significant application of this statutory language" is involved in the Board's Midwest Piping doctrine. Under that doctrine, an employer who is confronted with conflicting representation claims by two rival unions may not recognize one of the two competing unions until its right to be recognized has been determined finally by a Board-conducted election. The Board concluded in Midwest Piping that, in such rival union situations, "Congress has clothed the Board with the exclusive power to investigate and determine representatives for the purposes of collec- tive bargaining." 9 For an employer to recognize one of two competing unions, in such a situation, would, the Board concluded, indicate the employer's approv- al of that union; accord that union unwarranted prestige; encourage membership in if; discourage membership in the other union; and thereby render "unlawful assistance" to the recognized union in derogation of the Act.'° Ironically, it is clear that all of these "horribles" are the natural, foreseeable, and mandatory result of either a Section 9 certification, or of a remedial bargaining order, points which the courts of appeals have had no difficulty recognizing. For reasons I will make apparent hereafter, the specific language of the Board's holding in Midwest Piping should be noted. In particular, the Board stated: Under such circumstances, the Congress has clothed the Board with the exclusive power to investigate and determine representatives for the purposes of collective bargaining.' In the exercise of this power, the Board usually makes such determination, after a proper hearing and at a proper time, by permitting employees freely to select their bargaining representatives, by secret ballot. In this case, however, the respondent elected to disregard the orderly representative procedure set up by the Board under the Act, for which both unions had theretofore petitioned the 8 477 F.2d 66, 69 (CA. 7, 1973), denying enforcement 195 NLRB 560 (1972) 9 63 NLRB 1060, 1070 10 63 NLRB at 1071 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board, and to arrogate to itself the resolution of the representation dispute against the Steelwork- ers and in favor of the Steamfitters. Of particular significance, although it may have passed relatively unnoted at the time, was footnote 13 of the Board's opinion. There the Board said: 13 Respondent relied on signed membership cards as proof of the Steamfitters' claim of majority status. Under the circumstances, we do not regard such proof as conclusive Among other things , it is well known that membership cards obtained during the heat of rival organizing campaigns like those of the respondent's plants, do not necessarily reflect the ultimate choice of a bargaining representative, indeed, the extent of dual membership among the employees during periods of intense organizing activity is an important unknown factor affecting a determination of majority status, which can best be resolved by a secret ballot among the employees. Since Midwest Plumbing, the Board has consistently held that an employer is precluded from recognizing any union when a competing union has raised a "question concerning representation." In Midwest Piping itself, the requirement of a "question concern- ing representation" was met because the rival union had filed a representation petition. And, although in an early Board decision involving the Midwest Piping doctrine the Board noted that the doctrine should be "strictly construed and sparingly applied,"" the Board has, over the years, progressively lowered this requirement and accepted less of a showing of support to raise a "question concerning representa- tion" under the Midwest Piping doctrine. Presently, the Board's position is that all that is needed to raise a question concerning representation is that the claim of the rival union must not be "clearly unsupportable or specious, or otherwise not a colorable claim." 12 This explains how, in American Bread Company, 13 the Board could stretch the doctrine so far as to conclude that a question concerning representation had been established where an employer knew of a rival union's organizational campaign; the union had participated in an election at the employer the year before; and the union presented a single authoriza- tion card in a unit of 92 employees before recognition was extended to the other union. To find 'a violation here, we would have to extend this idea to its outer fantasies by asserting that a question concerning representation was raised by the Employer itself because Respondent had on its own initiative briefly discussed a contract with the Grain Millers some I- 1/2 months before it recognized the Teamsters. According to the Charging Party, this brief encounter 11 Ensher, Alexander & Barsoom, Inc., 74 NLRB 1443, 1445 (1947). 12 Buck Knives, Inc, 223 NLRB 983, sec. III ,B, first par (fn omitted) (1976); see also Playskool, Inc., 195 NLRB 560 (1972). 13 170 NLRB 85 (1968), enforcement denied 411 F.2d 147 (C A. 6, 1969) 14 See, e.g., Traub's Market, Inc., 205 NLRB 787 (1973), enforcement denied 505 F.2d 730 (CA. 3, 1974); Cleaver-Brooks Mfg Corporation, 120 NLRB 1135 ( 1958), enforcement denied 264 F.2d 637 (C A 7, 1959); Modine gave the Grain Millers "a claim which is fully supportable and not lacking in substance" and which has now triggered the Midwest Piping requirement that an election be held. Reductio ad absurdum. I note that as the Board has steadily eroded the requirement of a clearly supportable claim to exclu- sive representative status in a competing union situation, the courts have just as consistently refused to enforce Board orders founded on Midwest Pip- ing.14 Not only do I agree with the courts' criticism of the Board's Midwest Piping doctrine, but I find it necessary to simply abandon that decision to the very graveyard in which it has buried so many of our orders over the past 31 years. The correct analysis of this part of the Act is succinctly expressed in the Seventh Circuit's decision in Playskool, Inc. v. N.L.R.B., supra.15 There, the court commented that "the Board looks first to the support held by the minority union and finds a `question concerning representation' if the claim of that union is `not clearly unsupportable'; [while] the courts look first to the support held'by the majority union and find that no `question concerning repre- sentation' exists if that union has the validly-obtained support of an employee majority and the rival union is thus shown to be `no genuine contender.' " One commentator has indicated that, "This difference in definition between the Board and the courts stems from differing views as to the function of the Midwest Piping doctrine... [T ]he Board views the doctrine in part as a way of insuring the integrity of its election machinery. -It thus holds the doctrine applicable whenever an election is appropriate, and the Board will go ahead with an election despite a ' prior expression of majority sentiment. The courts on the other hand have thought of the Midwest Piping doctrine solely as a technique for ' preventing the employer from imposing his own choice of a bargain- ing representative upon his employees." 16 If the commentator had written this 6 years later, after our decision in American Bread, supra, he would have had to expound on the phrase "whenever an election is appropriate," inasmuch as the union there had obtained only one card from among 92 employees. Indeed, by refusing to allow an employer to resolve the conflict created by two'competing unions in any way other than through a Board-conducted election, the Board, to preserve what it conceives to be the integrity of its election machinery, eradicates the Manufacturing Company, 186 NLRB 629 (1970), enforcement denied 453 F.2d 292 (C.A. 8, 1971 ); Inter-Island Resorts, Ltd, d/b/a Kona Surf Hotel, 201 NLRB 139 (1973), enforcement denied 507 F.2d 411 (C.A 9, 1974) 15 477 F.2d at 70, fn. 3 16 Getman, The Midwest Piping Doctrine An Example of the Need for Reappraisal of Labor Board Dogma, 31 U Chi. L Rev 292, 297 (1964) U AND I, INC. - - 5 employees' right to select their chosen representative without undue delay.17 Further, by so exalting the necessity for a Board-held election in a rival union situation, the Board ignores the fact that the election process is only one means, though admittedly the preferable means, for -determining employee choice. For, as the court noted in N.L.R.B. v. Air Master Corporation, Air Master Manufacturing Company, Inc., etal.:18 It is interference with the employees' choice, not frustration of the Board's design to hold an election, which the statute proscribes as an unfair labor practice. I think it clear that it is now the Board which is arrogating unto itself powers which it-does not in fact have, and I believe that the Supreme Court so instructed- us, at our -own request, in its landmark opinion in N.L.RB. v. Gissel Packing Co., Inc.19 In that.opinion the.Supreme Court resolved the issue "whether a ,union can establish a bargaining obliga- tion by means other than a Board election and whether the- validity of. alternate routes to majority status, such as cards, was affected by the 1947 Taft- Hartley amendments." After a lengthy analysis, in which the Court reaffirmed its holding in Garment Workers' Union v. N_L.RB., supra, that an employer may not even in good faith recognize a minority union, the Court held that the Act did not restrict an employer's duty to bargain under § 8(a)(5) solely to those unions whose representative status is certified after a Board election.17 17 As aptly stated in Lesmck, Establishment of Bargauung Rights Without an NLRB Election, 65 Mich L. Rev 851, 861-862 (1967), "Cards have been used under the act for thirty years; [this ] Court has repeatedly held that certification is not the only route to representative status; and the 1947 attempt in the House-passed Hartley Bill to amend section 8(a)(5) . . was rejected by the conference committee that produced the Taft-Hartley Act. No amount of drum beating should be permitted to overcome, without legislation, this history." As we all know by now, the Court held that, subject to certain restrictions designed to protect the validity of authorization cards, cards are fully as adequate a means to determination of majority representation as a Board-conducted election. In that case the Court also noted, with approval, that the Board had finally abandoned the morass of Joy Silk's requirements of "good faith" by an employer when the employer 17 Early on in the development of the Midwest Piping doctrine, the Board itself noted this fact. In Ensher, Alexander & Barsoom, Inc., supra, the Board, in commenting that the Midwest Piping doctrine should be applied "spang- ly," noted that "necessary though [the doctrine] is to protect freedom of choice in certain situations [it ] can easily operate in derogation of the practice of continuous collective bargaining .. " 74 NLRB at 1445, What the Board then cautioned against, it has now brought to pass 18 339 F.2d 553,556 (C A 3, 1964). refuses a demand for recognition. This principle is in harmony with the Garment Workers'`holding. Good or bad faith is irrelevant; only a union possessing majority status in fact may be recognized by an employer as the exclusive representative. Of course, if the employer somehow errs in his factual judgment of the situation and recognizes a union that does not in fact have majority support, he will be guilty of an unfair labor practice in accord with the Supreme Court's decision in International Ladies' Garment Workers'-v. N.L.RB.20 But also is it the law that a correct factual determination by the, employer is as valid as a Board certification for ascertaining majori- ty status.21 There are, of course, ..exceptions to the right and duty of an employer to recognize one of two competing unions which has, demonstrated its sup- port among a majority of the employees. Among such situations are those where the union's majority support is due- to coercion or deception by the employer.22 But, no such claim is made in this case. Further, there is no allegation in the complaint herein, and no evidence presented that the Teamsters did not represent a majority of Respondent's employ- ees at the time recognition was extended, to the Teamsters 23 I approve the views expressed by the Third Circuit in N.L.R.B. v. Air Master Corporation,. Air Master Manufacturing Company, Inc., et al., supra, 24 Which coincide with my own. Specifically, I conclude that: For an employer to recognize a union that enjoys only minority support, is an unfair labor practice under the explicit holding of the Supreme Court in the International Ladies' Garment Workers case [cited supra]. To recognize one of two competing unions while the employees' choice between them is demonstrably in doubt, is [also] an unfair labor practice . . . . And in principle the same result follows when majority support for the recognized union exists, but has been achieved by coercion or some other unfair labor practice. But where a clear majority of the employees, without subjec- tion to coercion or other unlawful influence, have made manifest their desire to be represented by a particular union, there is no factual basis for a contention that the employer's action thereafter in recognizing the union or contracting with it is an 19 395 U.S. 575 (1969). 20 366 U.S. 731(1961). 21 See 366 U.S. at 739-740. 22 See, e.g., Iowa Beef Packers, Inc v NLRB, 331 F 2d 176 (C.A. 8, 1964), enfg. 144 NLRB 615 (1963). 23 Cf. International Ladles' Garment Workers'v. NLRB, supra 24 339 F 2d 553, 557. 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interference with their freedom of choice. [Em- phasis supplied.] Indeed, I further conclude along with the Third Circuit that, in the latter circumstance, such recogni- tion by the employer and the negotiation and execution of a collective-bargaining agreement are "precisely the sort of cooperation that- it is the policy of the Act to foster." 25 A complete investigation of the development of the Midwest Piping doctrine since its inception some 31 years ago convinces me that the doctrine has been overextended, and ultimately in my view superseded by the development of the law defining the parame- ters of an employer's duty to bargain and the appropriateness of Board-imposed bargaining orders supported entirely by authorization cards. As I stated in my concurring opinion in Buck Knives, Inc., 223 NLRB 983 (1976),26 an employer who recognizes and bargains with a union which it itself has given the means and aid which enabled the union to secure a majority of authorization cards, cannot rely on those tainted cards in defending itself against an 8(a)(2) charge. On the other hand, regardless of the weight of interest demonstrated by one or more unions in representing the employer's employees, where the employer recognizes a union which in fact represents an uncoerced majority of those employees, then there is no violation of the Act; on the contrary, I believe that the ,purposes of the Act have been fulfilled as the court so stated in the International Ladies' Garment Workers', supra, case. Accordingly, to establish a violation of the Act, General Counsel carries the burden of proving, unaided by such fictions of proof as we customarily have attributed to incumbency status or the existence of a petition filed with us that the union is in fact a minority union. This is so regardless of whether the employer examines the, cards of the union or even permits competing unions to submit their cards. However, I recognize that General Counsel will have made a prima facie showing sufficient to require the charged employer to come forward with the proof of majority support which would 'exonerate him, where, e.g., in Buck Knives, supra, General Counsel-demons- trates that the employer has aided the union of its choice in securing cards or other indicia'of support by any benefit not accorded on an impartial basis to all competing labor organizations. Among those matters of proof which I would deem sufficient to make out a prima facie case would be the situation where the employer has not accorded the competing union the opportunity to submit its evidence of support con- temporaneously with that submitted-by the ultimately victorious union.27 Accordingly, I join my colleagues in dismissing the complaint in its entirety. 25 Suburban Transit Corp andH.A M I Corporation v. N.L.R.B, 499 F.2d 27 This is all that is required to dispose of the fear of dual membership 78,86 (C.A. 3,1974), denying enforcement 203 NLRB 465 (1973) expressed by the Board in fn. 13 of its Midwest Piping opinion. See my 26 See also my concurring opinion in Newport Division of Wintex Knitting concurring opinion in Newport Division of Wintex Knitting Mill, Inc, 223 Mill, Inc., 223 NLRB 1293 (1976). NLRB 1293 (1976).